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By W. Gardner Selby December 10, 2014

Mike Martinez, PAC says, cut a deal to avoid possible jail time, sticking taxpayers with legal bill

This message may have landed in your mail: The Austin City Council member in the hunt for mayor may have averted imprisonment with taxpayers’ assistance.

"Politician Mike Martinez cut a deal with prosecutors to avoid facing possible jail time and stuck us with his $24,657.50 legal bill," the Progress for Austin PAC’s mailer says.

Does that statement about Martinez, who faces lawyer Steve Adler in a Dec. 16, 2014, runoff, hold up?

To our inquiry, Marc Winkelman, an Austin businessman listed in the PAC’s campaign treasurer paperwork, said by email the claim was based on news stories in the Austin American-Statesman and Austin Bulldog and government documents.

From the cited information and interviews, we confirmed the city paid that much in attorney costs for Martinez after a nearly two-year investigation of council practices.

Also clear, Martinez wasn’t alone in reaching an accord effectively ending the inquiry.

In 2011-12, the Travis County attorney, David Escamilla, oversaw the investigation touched off by a complaint that council members were routinely meeting privately, in groups of two or three, to discuss city business. Escamilla wanted to know if the council was trying to circumvent the Texas Open Meetings Act, which prohibits elected officials from secretly deliberating about upcoming votes. At issue was whether members were creating "walking quorums," in which they relayed information to each other to work out a vote’s outcome in advance of the body’s public meetings.

According to an October 2012 Austin American-Statesman news story, agreements signed by Mayor Lee Leffingwell and six fellow council members who had been in office when the inquiry started spared the members from misdemeanor charges that could have led to jail terms of up to six months and $500 fines. Per the agreements, the signers agreed to take open-government courses and keep following such laws, the story said.

At the time, Escamilla said his office had found "multiple violations" of state open-meeting laws. Council members "regularly deliberated outside of the public’s purview by use of almost every modern communication medium that exists. We found probable cause to believe that multiple violations" occurred, he said, though he also noted the practice had existed before the affected council members were in office.

But criminal charges weren’t filed, he said, in part because the council had taken open-government steps, notably ending the private meetings, instead holding public work sessions — long, wide-ranging discussions — two days before each council meeting.

In a press release, Escamilla said that if council members didn’t comply with the agreements, "we will file criminal charges based on the alleged violations that were the subject of the investigation" with convictions possibly leading to fines of $100 to $500 and/or "confinement" of 30 to 180 days.

We contacted Martinez’s attorney through the investigation, Joe Turner, who said by phone the statement in the mailer misrepresented events in that "there never was a prosecution, there was never a criminal case filed," Turner said.

In contrast, Escamilla told us of Martinez: "It is true that he entered into an agreement where my office deferred prosecution for two years on the condition that he agree and abide by the terms of the agreement, which had multiple terms designed to prevent him or the city from violating the public information, records retention and open meetings acts."

The agreement signed by Martinez, which we downloaded from the Bulldog, said that since Martinez joined the council in June 2006 until the investigation, Martinez had routinely participated in private meetings with fellow council members in advance of public council meetings. "The aforementioned meetings or one-on-one's" between council members "were calendared on the mayor's and each member's public calendar. A number of these were posted on the Internet. There was no attempt to hide them nor keep them a secret," the agreement said.

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In the agreement, Martinez said he hadn’t violated the open-meetings law and wasn’t admitting guilt to any offense. The agreement "is a good-faith effort by both parties to resolve the county attorney's office investigation, and in consideration of the county attorney's legitimate effort to enforce the Open Meetings Act and Mike Martinez's efforts to ensure that even the potential for appearance of impropriety is avoided by implementing best practices related to and open government," it said.

Escamilla elaborated to us that if a member had refused to sign the "plea bargain" agreement, he or she would have been charged with violating a provision in the state’s government code barring a member or group of members of a governmental body from knowingly conspiring to circumvent the open meetings law by meeting in numbers less than a quorum for the purpose of secret deliberations.

"The" PAC’s "statement is accurate with respect to the fact that Mr. Martinez entered into an agreement deferring prosecution on the condition he abide by the agreement," Escamilla said.

Taxpayers stuck with legal tab?

Next, we looked into city taxpayers getting "stuck" with Martinez’s legal costs, as the mailer says.

When the investigation closed, the city had generally spent about $383,000 out of contracts worth $444,000 in hiring three law firms to advise city officials and the council on the investigation and open-meetings matters, the Statesman then reported.

One of several web links in the mailer’s fine print led us to an April 2013 Austin Bulldog news story stating $157,636 was paid by the city to attorneys who had represented council members in connection with the inquiry. And that story included a link to what appeared to be a Dec. 7, 2012, city document showing $24,657.50 paid to Turner, who reported 69.75 hours of work serving Martinez from March 25, 2011, through Oct. 24, 2012, at a fee of $350 an hour. Turner’s tabulation also showed $245 in charges for a paralegal to copy 440 notebook pages.

In our conversation with him, Turner said the city was obligated to represent Martinez and other council members because the inquiry concerned their official actions. To our inquiry, city officials didn’t say if a particular ordinance requires as much.

Martinez and Adler

By phone, Martinez said any insinuation council members cut a deal to avoid jail time isn’t accurate in that no charges were filed. If charges had been leveled, he said, a judge or jury would have determined guilt or innocence as well as any penalties, he said, not the county attorney.

Finally, we wondered whether Adler would have signed one of the agreements if he’d been on the council. His campaign manager, Jim Wick, replied by email: "We'd prefer not to comment on this issue as it is not one that our campaign has ever raised."

Our ruling

The PAC said Martinez "cut a deal with prosecutors to avoid facing possible jail time and stuck us with his $24,657.50 legal bill."

Martinez, like fellow council members who’d routinely conferred before public meetings despite restrictions in law, signed an agreement arguably heading off the possibility of jail time, though the county still would have had to file charges before winning a conviction and a sentence. Council members including Martinez also went along with the city paying related legal bills.

We rate the statement True.

TRUE – The statement is accurate and there’s nothing significant missing.

Click here for more on the six PolitiFact ratings and how we select facts to check.

Our Sources

Email response to PolitiFact Texas, Marc Winkelman, Austin businessman, representative of Progress for Austin PAC, Dec. 4, 2014

News stories, "City leaders signing deals to avoid charges in open meetings saga," Austin American-Statesman, Oct. 17, 2012; "Travis County attorney says he found open meetings violations but will not prosecute Austin City Council members," Statesman, Oct. 24, 2012 (accessed Dec. 4, 2014)

News story, "City Spent $157,636 to Defend Council Violations," the Austin Bulldog, April 8, 2013

Telephone interview, Joe Turner, attorney, Austin, Dec. 4, 2014

Telephone interviews, David Escamilla, Travis County attorney, Austin, Dec. 4, 2014

Documents, "Compliance Agreement, the State of Texas v. Mike Martinez," in the County Court at law, Travis County, Texas, signed by Martinez Oct. 15, 2012; press release, Travis County Attorney David Escamilla, Oct. 24, 2012 (downloaded from the Austin Bulldog, Dec. 5, 2014)

Email, Jim Wick, campaign manager, Steve Adler campaign, Dec. 4, 2014

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More by W. Gardner Selby

Mike Martinez, PAC says, cut a deal to avoid possible jail time, sticking taxpayers with legal bill

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